(concurring):
I concur in affirming the defendant’s conviction. I cannot wholly subscribe, however, to the majority’s statement that prior cases of this Court have required evidence of pecuniary loss and therefore must be overruled.
In State v. Howd, 55 Utah 527, 188 P. 628 (1920), this Court stated that in order to convict a defendant of the crime of obtaining money or property by false pretenses (Compiled Laws of Utah § 8344 (1917)), the following elements must concur: (1) there must be an intent to cheat or defraud; (2) an actual fraud must be committed; (3) there must be a fraudulent representation or a false pretense for the purpose of perpetrating the fraud in obtaining the property of another; and (4) the fraudulent representation or false pretense must *240be the cause which induced the owner to part with his property. These elements were reaffirmed later in State v. Fisher, 79 Utah 115, 8 P.2d 589 (1932). It is to be noted that no requirement was made that the victim sustain a pecuniary loss. In State v. Casperson, 71 Utah 68, 262 P. 294 (1927), this Court emphasized that a pretense false in fact and an actual fraud resulting in prejudice are the bases of the crime. We there said:
The actual fraud and prejudice required, however, is determined according to the situation of the victim immediately after he parts with his property. If he gets what was pretended and what he bargained for, there is no fraud or prejudice. But if he then stands without the right or thing it was pretended he would then have, he has been defrauded and prejudiced by reason of the false pretense, and the offense is complete, notwithstanding thereafter he may regain his property, or the person obtaining it or another compensates him, or he thereafter obtains full redress in some manner not contemplated when he parted with his property.
(Emphasis added.) In the later case of State v. Morris, 85 Utah 210, 38 P.2d 1097 (1934), the above language was quoted with approval, after which this Court required that the claimed victim must also have sustained a pecuniary or property loss by reason of the transaction relied upon. In that case, because the claimed victim had security sufficient to cover any loss that might occur, the defendant’s conviction was reversed and a new trial ordered. We there observed that in a civil action based on fraud a plaintiff would have to prove injury or damages. For even stronger reasons, we said, this requirement should obtain in a criminal action based on fraud. However, except in State v. Morris, supra, pecuniary loss has not been required to be shown in any case. Instead, the focus has been on whether the victim received what was pretended and what he bargained for. “A failure to receive what was bargained for being an essential .element of the crime of obtaining money or property by false pretenses, such facts must be alleged, otherwise the information fails to charge a public offense.” State v. Fisher, supra, at 79 Utah 120, 8 P.2d 589.
Since 1973, when our present section 76-6-405 (theft by deception) was enacted, we have decided State v. Johnson, Utah, 663 P.2d 48 (1983), where we stated that an essential element of the offense of theft by deception was that the victim failed to get what he bargained for or that he sustained a pecuniary loss. In State v. Walton, Utah, 646 P.2d 689 (1982), while we found that the victims suffered a pecuniary loss, we cited State v. Casperson to the effect that to sustain a conviction it was sufficient that neither of the victims received that for which he bargained. We held that it was immaterial that the victims might, by bringing a civil action against the defendant’s principal, recover their losses.
My review of the Utah cases brings me to the conclusion that State v. Morris was an aberration in requiring that the victim sustain a pecuniary loss. In the instant case, the victim did not receive what she bargained for (Brazilian gold). Instead, she has the deed to a lot subject to $22,200 in liens, for which she did not bargain. That is sufficient to sustain defendant’s conviction.
DURHAM, J., concurs in the concurring opinion of HOWE, J.